Legislature(1993 - 1994)

03/28/1994 01:37 PM Senate JUD

Audio Topic
* first hearing in first committee of referral
+ teleconferenced
= bill was previously heard/scheduled
                   SENATE JUDICIARY COMMITTEE                                  
                         March 28, 1994                                        
                           1:37 p.m.                                           
  MEMBERS PRESENT                                                              
 Senator Robin Taylor, Chairman                                                
 Senator Rick Halford, Vice-Chairman                                           
 Senator George Jacko                                                          
 Senator Dave Donley                                                           
 Senator Suzanne Little                                                        
  MEMBERS ABSENT                                                               
 All members present                                                           
  COMMITTEE CALENDAR                                                           
 CS FOR HOUSE BILL NO. 195(FIN)                                                
 "An Act authorizing youth courts to provide for peer adjudication             
 of minors who have allegedly committed violations of state or                 
 municipal laws, and renaming the community legal assistance grant             
 fund and amending the purposes for which grants may be made from              
 that fund in order to provide financial assistance for organization           
 and initial operation of youth courts."                                       
 SENATE JOINT RESOLUTION NO. 8                                                 
 Proposing amendments to the Constitution of the State of Alaska               
 relating to capital projects and loan appropriations, and to the              
 expenditure limit.                                                            
 SENATE BILL NO. 279                                                           
 "An Act relating to operating or driving a motor vehicle,                     
 commercial motor vehicle, aircraft, or watercraft."                           
 CS FOR HOUSE BILL NO. 254(JUD) am(ct rule fld)                                
 "An Act relating to open meetings of governmental bodies."                    
  PREVIOUS SENATE COMMITTEE ACTION                                             
 HB 195 - See Health, Education & Social Services minutes dated                
 SJR 8 - See State Affairs minutes dated 1/27/93.  See                         
         Judiciary minutes dated 2/15/93, 2/19/93, 2/22/93.                    
 SB 279 - See State Affairs minutes dated 3/9/94 & 3/11/94.                    
 HB 254 - See Judiciary minutes dated 3/9/94, 3/16/94, 3/21/94.                
 WITNESS REGISTER                                                              
 Paula Terrel, Staff to Representative Joe Sitton                              
 State Capitol                                                                 
 Juneau, AK 99801-1182                                                         
  POSITION STATEMENT:   Offered information on HB 195                          
 John Ely, President                                                           
 Anchorage Youth Court                                                         
 Anchorage, AK                                                                 
 Phone No. (907) 278-8533                                                      
  POSITION STATEMENT:   Testified in support of HB 195                         
 Senator Randy Phillips                                                        
 State Capitol                                                                 
 Juneau, AK 99801-1182                                                         
  POSITION STATEMENT:   Prime Sponsor of SJR 8                                 
 C.E. Swackhammer, Deputy Commissioner                                         
 Department of Public Safety                                                   
 P.O. Box  111200                                                              
 Juneau, AK 99811-1200                                                         
  POSITION STATEMENT:   Offered information in support of SB 279               
 Steve Barnes                                                                  
 P.O. Box 332                                                                  
 Cordova, AK 99574                                                             
  POSITION STATEMENT:   Supports SB 279                                        
 Patsy Fisher                                                                  
 P.O. Box 321                                                                  
 Cordova, AK 99574                                                             
  POSITION STATEMENT:   Supports SB 279                                        
 Juanita Hensley, Chief of Drivers Services                                    
 Division of Motor Vehicles                                                    
 Department of Public Safety                                                   
 P.O. Box 20020                                                                
 Juneau, AK 99802-0020                                                         
  POSITION STATEMENT:   Offered information on SB 279                          
 Tam Cook, Director                                                            
 Legal Services Division                                                       
 Legislative Affairs Agency                                                    
 130 Seward St., Suite 409                                                     
 Juneau, AK 99801-2105                                                         
  POSITION STATEMENT:   Offered information on HB 254                          
 John McKay                                                                    
 Anchorage, AK                                                                 
 Phone No. (907) 276 5231                                                      
  POSITION STATEMENT:   Testified on HB 254                                    
 ACTION NARRATIVE                                                              
 TAPE 94-26, SIDE A                                                            
 Number 001                                                                    
 JUD - 3/28/94                                                                 
  CHAIRMAN ROBIN TAYLOR  called the Judiciary Committee meeting to             
 order at 1:37 p.m.  He brought  CSHB 195(FIN)  (AUTHORIZING YOUTH             
 COURTS) before the committee as the first order of business.                  
 PAULA TERREL, staff to Representative Joe Sitton who is prime                 
 sponsor of HB 195, explained the legislation is based on a Youth              
 Court Program, the only one in Alaska.  It is a diversion program             
 that has had a good success rate in Anchorage.  Minors who have               
 committed an offense, or allegedly committed a offense, can decide            
 to go into this diversion program if the juvenile intake of the               
 Department of Health & Social Services and their parents agree.               
 HB 195 will set up in statute the authority for youth court                   
 programs to take place.  It will also set up a grant program under            
 DCRA which will allow communities, whether urban or rural, to apply           
 for a $5,000 one time only grant that would have to be matched by             
 each nonprofit or community as seed money to start up the program.            
 She noted the bill is set up so that it would allow for maximum               
 flexibility depending on how the communities want to handle it.               
 Ms. Terrel pointed out that recidivism rate is very low in the                
 Anchorage program.                                                            
 Number 083                                                                    
 SENATOR HALFORD said the bill provides that the record be sealed,             
 but he wondered if the bill provides access to the record of                  
 disposition of a case to the victim of the offense, essentially for           
 a civil case, because the victim may want to sue the offender and             
 the parents for damages.  He added that he would be violently                 
 opposed to anything that weakens that right more than it already              
 JOHN ELY, an Anchorage lawyer and President of Anchorage Youth                
 Court testifying from Anchorage, said one the main things the                 
 Anchorage Youth Court tries to teach the defendant is the cost of             
 their crime.  Restitution is one of the main emphases that they               
 give out, along with community service.  Any property damage that's           
 done is almost always compensated for through restitution.                    
 However, there is difficulty in allowing civil proceedings to flow            
 from juvenile proceedings because of a strict confidentiality                 
 involved in all juvenile proceedings.  In youth court, there is one           
 added difficulty to allowing the information to go, and that is               
 that no actual conviction will show on the juvenile's record after            
 completing the youth court diversion program sentencing if they are           
 found guilty in youth court.                                                  
 Number 612                                                                    
 SENATOR HALFORD said he has no interest in a civil follow-up if, in           
 fact, there is restitution, but if the restitution isn't paid, then           
 we've just established a mechanism to protect the juvenile from               
 having to pay the bill for what he did.  MR. ELY answered that as             
 it stands now, it would still be very difficult to use the juvenile           
 criminal record in a civil proceeding.  SENATOR HALFORD noted that            
 legislation has passed the Senate that will make changes to                   
 juvenile waivers and juvenile information.  SENATOR TAYLOR said               
 that he would have staff make sure that the provisions incorporated           
 within the current SB 54 are in balance with the legislation before           
 the committee.  SENATOR HALFORD said that with that exception, he             
 has no problem with the legislation.                                          
 Number 186                                                                    
 SENATOR DONLEY asked who establishes guidelines that the                      
 prosecutors follow for youth court.  MR. ELY replied that they                
 prosecute under both state and municipal laws, depending on the               
 offense, the arresting officer's citing of the offense, etc.  The             
 guidelines for prosecution are established by the youth court bars            
 themselves and they are not extremely formal.  The prosecutors are            
 students themselves, and there are legal advisors to the youth                
 SENATOR DONLEY related that concern had been expressed to him by              
 several police officers that after arrests had been made, the                 
 officers weren't even requested to come in and testify, and that              
 nothing was done to the offenders.  MR. ELY said he was surprised,            
 and he would like to talk to Senator Donley further about the                 
 instances because there may be some misunderstandings.  He added              
 that they work as closely with law enforcement as they can.                   
 Number 260                                                                    
 SENATOR DONLEY also spoke to the public perception that a lot of              
 these juveniles are repeat offenders, that they commit these crimes           
 over and over again before they are formally adjudicated as                   
 delinquents, and even that system is not very effective as far as             
 the punishment being given.  MR. ELY clarified that the youth court           
 only deals with first time offenders.                                         
 Number 325                                                                    
 There being no further testimony on HB 195, SENATOR TAYLOR stated             
 the bill would be held in committee for further consideration.                
 Number 340                                                                    
 JUD - 3/28/94                                                                 
 before the committee as the next order of business.                           
 SENATOR RANDY PHILLIPS explained the legislation is basically a               
 spending limit plan.  It sets the limit at $2.3 billion from FY 95            
 through the year 2000.  The only exceptions to the spending limit             
 would be the appropriations to the permanent fund, permanent fund             
 dividends, budget reserves, revenues from taxes approved by voters,           
 bond proceeds, principal and interest on bonds issued by the state,           
 money received in trust for a specific purpose, endowment earnings,           
 and reserves from public corporations.                                        
 The limit cannot be exceeded unless there is two-thirds affirmative           
 vote of both the House and the Senate.  If inflation exceeds 6                
 percent, the Legislature may appropriate an amount to offset the              
 effect of inflation that exceeds 6 percent.  Any revenues in excess           
 of the expenditure limit will be deposited in the constitutional              
 budget reserve account.                                                       
 It also requires that at least 10 percent of all money appropriated           
 for each fiscal year be appropriated for capital projects and                 
 Number 360                                                                    
 SENATOR TAYLOR asked if this would have an effect on the last three           
 years' budget cycles.  SENATOR PHILLIPS answered it would have an             
 effect on both last year and this year.                                       
 SENATOR TAYLOR asked if it was realistic to try to obtain a                   
 spending limitation at this level.  SENATOR PHILLIPS acknowledged             
 it was, because in the future, the state will be at that point                
 whether this is in place or not.  SENATOR TAYLOR responded that               
 wasn't necessarily true, because the Legislature could start                  
 spending money out of different accounts that are still readily               
 available for appropriation.                                                  
 Number 390                                                                    
 SENATOR LITTLE, referring to the inflation factor, asked if this              
 legislation takes into account that fact that everything will cost            
 more.  SENATOR PHILLIPS answered that right now inflation is about            
 at 3 percent and this allows for an upper cap of 6 percent.  If it            
 goes over that, the Legislature may appropriate an amount to offset           
 the effect of inflation that exceeds 6 percent.  SENATOR TAYLOR               
 pointed out that if the inflation rate were at 5 percent, his                 
 formula would not allow for any adjustment to take that 5 percent             
 into consideration.  SENATOR LITTLE said she had some real concerns           
 with school districts and everybody else in the state having to eat           
 the cost of inflation without severely damaging programs.  SENATOR            
 PHILLIPS stated he would not have a problem with amending that                
 Number 420                                                                    
 SENATOR DONLEY made a motion that on page 1, line 7, to change the            
 money appropriated for capital projects and loans from 10 percent             
 to 5 percent.  SENATOR JACKO objected, stating that capital                   
 projects are more important in some parts of the state than others,           
 and making it less is not reflective of that.  The roll was taken             
 with the following result:  Senator Donley voted "Yea" and Senators           
 Taylor, Halford, Jacko and Little voted "Nay."  The Chairman stated           
 the motion failed.                                                            
 Number 480                                                                    
 After further discussion on the inflation factor, SENATOR TAYLOR              
 moved that page 2, lines 14 and 15, replace "6" with "3."  Hearing            
 no objection, the amendment was adopted.                                      
 SENATOR DONLEY asked where the state's share of local school                  
 construction projects fits in.  SENATOR PHILLIPS answered that it             
 isn't in here, it is part of the operating budget, and he wouldn't            
 be opposed to adding that to the 10 percent capital projects                  
 Number 520                                                                    
 SENATOR JACKO asked what percentage was appropriated last year for            
 capital projects.  SENATOR PHILLIPS estimated it was close to 25              
 SENATOR JACKO moved that on page 1, line 7, change "10 percent" to            
 "25 percent."  SENATOR LITTLE objected.  The roll was taken with              
 the following result:  Senator Jacko voted "Yea" and Senators                 
 Taylor, Halford, Donley and Little voted "Nay."  The amendment                
 Number 545                                                                    
 SENATOR TAYLOR moved that on page 1, line 12, and on page 2, line             
 9, change "1995" to "1996" and change "2000" to "2001" and on page            
 2, line 25, change "2000" to "2001."  Hearing no objection, the               
 amendment was adopted.                                                        
 SENATOR DONLEY asked what the interplay was between this amendment            
 and the existing Article IX, Section 16, and why not just eliminate           
 it.  SENATOR PHILLIPS suggested a repealer could be put in saying             
 that if this is approved that section could be repealed.  SENATOR             
 DONLEY commented he thought it is more preferable to put this on              
 the books and just get rid of Section 16, which is the old spending           
 TAPE 94-26, SIDE B                                                            
 Number 015                                                                    
 SENATOR DONLEY moved a conceptual amendment that the resolution               
 would repeal Article IX, Section 16 of the Constitution of the                
 State of Alaska.  SENATOR HALFORD amended the conceptual amendment            
 that the resolution should be redrafted so that it becomes a                  
 replacement for the existing Article 18, Section 16.  Hearing no              
 objection, the conceptual amendment was adopted.                              
 Number 040                                                                    
 SENATOR TAYLOR stated that after a committee substitute                       
 incorporating the amendments was drafted, SJR 8 would be back                 
 before the committee for final action.                                        
 Number 050                                                                    
 JUD - 3/28/94                                                                 
 SENATOR TAYLOR brought  SB 279  (DWI LAWS) before the committee and           
 noted that it was the same as  HB 445  which was being worked in the     e    
 House.  It was further  noted there was a draft CSSB 279(JUD) for             
 the committee's consideration.                                                
 C.W. SWACKHAMMER, Deputy Commissioner, Department of Public Safety,           
 explained the Governor introduced the two pieces of legislation               
 based upon Alaska being number three in the nation in alcohol and             
 drug-related traffic fatalities.   In 1992, there were 382 major              
 injury accidents involving 550 drivers and 89 fatality accidents              
 involving 125 drivers.                                                        
 The legislation changes the implied consent law to make it                    
 applicable to all drivers that are involved in fatal or serious               
 injury accidents.  The ability to take blood and urine from the               
 drivers will provide a much needed tool in an attempt to remove               
 drunk drivers from the road.  The implied consent is the same as              
 the implied consent for the toxcimeter.                                       
 Number 080                                                                    
 SENATOR DONLEY pointed out that this doesn't require any reasonable           
 suspicion by the arresting officer that the driver was drinking or            
 was under the influence of alcohol or a drug.  MR. SWACKHAMMER                
 agreed, and said the thing that is critical in major injury and               
 fatality accidents is time in terms of alcohol levels or blood                
 levels.  He spoke to the positive aspect to the innocent person by            
 taking someone's blood or urine to be able to prove the fact that             
 the individual was not intoxicated or on drugs.  He added it will             
 give everyone involved in these injury and fatal accidents some               
 facts to go on.  Currently, there is not a process without a search           
 warrant to screen for drugs.                                                  
 SENATOR DONLEY voiced his concern with requiring the ordinary                 
 person who was involved in an accident, but who had not caused the            
 accident, into giving blood and urine samples.  He wondered want              
 the Supreme Court would say about such a requirement, and he                  
 requested that a legal opinion be requested on the question.                  
 Number 190                                                                    
 SENATOR TAYLOR stated the committee would take testimony over the             
 Legislative Teleconference Network.                                           
 STEVE BARNES, testifying from Cordova, related that his wife and              
 child were killed earlier in the month in Anchorage, while                    
 traveling to a judo tournament, by a drunk driver who had walked              
 out of a half-way house.  He said warrants issued for individuals             
 walking out of half-way houses are not pursued, and he suggested              
 taking care of the problem before it happens by instituting tougher           
 penalties for repeat offenders of DWI.  He strongly urged passage             
 of a provision such as contained in HB 542 which would make the               
 fifth DWI offense a class C felony.                                           
 SENATOR TAYLOR agreed that SB 279 could be amended to include the             
 felony provision.                                                             
 Number 245                                                                    
 SENATOR HALFORD thanked Mr. Barnes for his testimony and his                  
 continued interest in benefits to others, and he said he wished it            
 weren't in this situation.  SENATOR TAYLOR also expressed the                 
 committee's condolences to Mr. Barnes and its appreciation for his            
 Number 253                                                                    
 PATSY FISHER, a member of the Cordova City Council testifying from            
 Cordova, echoed Mr. Barnes' comments, and said the revocation of              
 licenses is not keeping the drunk drivers off of the road.  She               
 urged that the committee take steps to make a third offense a                 
 felony, and to impose stiffer penalties so that more lives are not            
 lost because of drunk drivers.                                                
 Number 265                                                                    
 SENATOR TAYLOR noted that Section 8 on page 7 of the draft                    
 committee substitute incorporates the felony for the third                    
 offender.  It provides that a person would be guilty of a class C             
 felony if convicted of driving while intoxicated and has two                  
 previous convictions or more on their record.  It also provides for           
 a minimum sentence of imprisonment of 360 days and a fine of not              
 less than $1,000.                                                             
 Number 275                                                                    
 SENATOR HALFORD moved that CSSB 279(JUD) be adopted as a working              
 document.  Hearing no objection, the Chairman stated the committee            
 substitute was adopted and was before the committee.                          
 SENATOR HALFORD moved that on page 7, line 17, change "$1,000" to             
 "$5,000."  Hearing no objection, the amendment was adopted.                   
 Number 307                                                                    
 SENATOR DONLEY asked if the new subsection provides for the                   
 furloughing of prisoners.  SENATOR TAYLOR answered that it does               
 SENATOR HALFORD commented that he likes the $5,000 fine, but he has           
 concerns with the cuts that are being made in the Department of               
 Corrections' budget, and he wondered how else the penalties could             
 be increased in a way that would not greatly increase the                     
 Corrections' budget.  He also suggested that the person who                   
 provides a vehicle to a person who has previous DWIs should be                
 penalized as well.                                                            
 Number 330                                                                    
 SENATOR DONLEY expressed his frustration that the House has passed            
 a bill that does away with the requirement that individuals who got           
 DWIs insure all of their vehicles.                                            
 Number 372                                                                    
 SENATOR LITTLE inquired what the current prison time requirement is           
 for DWIs.  JUANITA HENSLEY, Division of Motor Vehicles, Department            
 of Public Safety, said the first offense is a minimum of 72 hours,            
 the second offense is a mandatory 20 consecutive days, the third              
 offense is a minimum of 60 consecutive days, the fourth offense is            
 a minimum of 120 days, the fifth offense is 240 days, and the sixth           
 and subsequent offense is 360 days.                                           
 SENATOR LITTLE voiced her concern that with the changes made in the           
 committee substitute there will be a dramatic change in the fiscal            
 note by the Department of Corrections.  She has a problem with                
 cutting drug and alcohol abuse programs, not adequately funding the           
 prison system, and then passing bills like this.  SENATOR TAYLOR              
 pointed out that current law provides that the prisoners pay for              
 the time served if they have the ability to do so.  MS. HENSLEY               
 agreed, stating that they pay $60 a day or up to $1,000.                      
 Number 420                                                                    
 SENATOR HALFORD questioned if there was a significant difference in           
 a felony with a 360-day sentence versus a 366-day sentence, because           
 he thinks there are provisions in federal law and state law that              
 deal with a felony for which the term of imprisonment exceeds one             
 year.  SENATOR TAYLOR agreed that the normal definition of a                  
 "felony" is a sentence carrying more than one year.  SENATOR                  
 HALFORD suggested making it one year instead of 360 days.                     
 Number 475                                                                    
 SENATOR DONLEY thought the confiscation of vehicles that are used             
 in the commission of the crime would be the single most effective             
 thing that could be done, even more than locking the offender up.             
 SENATOR TAYLOR asked Margo Knuth of the Department of Law to work             
 with the drafter of the legislation to see if there was a possible            
 way to provide for a forfeiture the court can order without having            
 to go through a rather involved process.  MARGO KNUTH agreed to do            
 so, but thinks that there may be constitutional problems.                     
 SENATOR HALFORD agreed something needs to be done that hits the               
 vehicle and scares the financial institutions away from insuring              
 and financing cars for DWIs, as well people from loaning their cars           
 to somebody that they know has a DWI.  He said economic enforcement           
 has more impact that social enforcement.                                      
 Number 530                                                                    
 There was some discussion on the delay in the system of offenders             
 going to court and serving their time, etc., and the majority of              
 the people who are driving without a license are people who lost              
 their licenses because of DWIs.  MR. SWACKHAMMER agreed, and he               
 pointed out that there are so many driving with license suspended             
 offenses that the system just won't accommodate it.  When looking             
 at the problem from a statewide perspective and when looking at the           
 numbers, whether it is the district attorney's office, the courts,            
 or the Department of Corrections, the system just can't handle the            
 load.  In terms of priorities of types of criminal cases that are             
 going through, these offenses have taken a back seat.  MS. HENSLEY            
 added that there is in excess of 5,500 DWIs a year in Alaska.                 
 TAPE 94-27, SIDE A                                                            
 Number 010                                                                    
 MR. SWACKHAMMER discussed the mandatory drug and alcohol testing on           
 drivers causing accidents and the problems the arresting officer              
 has in detecting the use of drugs at the scene of the accident.               
 SENATOR DONLEY thought there should be a legal standard somewhere             
 between "probable cause" and "no cause" that is the ability of the            
 arresting officer to articulate a reasonable suspicion.                       
 Number 050                                                                    
 SENATOR TAYLOR stated SB 279 would be held over until the next                
 meeting to look at a possible forfeiture provision.                           
 Number 095                                                                    
 JUD - 3/28/94                                                                 
 SENATOR TAYLOR brought  CSHB 254(JUD) am(ct rule fld)  (OPEN MEETING     G    
 ACT) before the committee as the final order of business.                     
 SENATOR LITTLE said at the last meeting on the bill, some of the              
 members had concern with community councils.  As a result, a new              
 committee substitute was drafted and on page 5, lines 18 through              
 23, an exception for community councils has been included.                    
 Number 125                                                                    
 SENATOR TAYLOR said his only concern is that at what point in time            
 is a determination made that the group has gathered for the purpose           
 of adopting a recommendation.  His concern is the notification                
 requirements and when does this trigger.   SENATOR LITTLE responded           
 that all community councils are currently advertising there                   
 meetings.  She said this language was added so that members of the            
 community council could get together for a block party without                
 violating the Open Meetings Act, and all of the other times when              
 they would be making decisions for the community council, they                
 would need to meet under the Open Meetings Act.  She added that               
 these councils only make recommendations, and when dealing with a             
 body that only recommends, there is little impact to the main body            
 who accepts that recommendation.  She didn't see that any great               
 harm could be developed from a suit against an advisory group.                
 SENATOR TAYLOR responded that it would be against the assembly for            
 having taking the recommendation and acting upon it.                          
 Number 190                                                                    
 TAM COOK, Director, Division of Legal Services, Legislative Affairs           
 Agency, observed that she was sure that the action of an assembly             
 would be voided, assuming that the assembly action was properly               
 noticed, etc.  She thought it would be quite a stretch for the                
 court to be willing to go that far.  She also observed that when              
 dealing with a large group of people who are participating in a               
 council meeting, it will incumbent upon whoever is chairing that              
 meeting to remind the member with the idea about a recommendation             
 that they want to bring forward of the requirement of the Open                
 Meetings Act, and that if the council has not complied with it,               
 they'll need to schedule another meeting before they take action on           
 that recommendation.                                                          
 Ms. Cook said that, essentially, this approach gives some leeway to           
 public councils in that there is a number of members test or any              
 other definition of what constitutes a gathering.  The test is are            
 they attempting to take action.                                               
 Number 231                                                                    
 SENATOR DONLEY said there was discussion at the last meeting on               
 advisory groups and breaking out the requirements for them, but not           
 necessarily holding them to the same standards of not talking to              
 each other, and he asked it that was covered in the committee                 
 substitute.  SENATOR LITTLE responded that they would be covered              
 under the new definition of a meeting.  MS. COOK agreed that the              
 advisory groups would be covered, and they would be held to same              
 level of the test of what is a meeting, except for the narrow                 
 exception in the committee substitute that applies to community               
 council situations.  The test for a community council is that it is           
 must be a group with an indefinite membership.  She suggested if              
 the committee so desired, it could take the same approach with all            
 advisory groups, not just community councils.                                 
 Number 283                                                                    
 SENATOR TAYLOR spoke to his concerns on applying the Open Meetings            
 Act to the subcommittee level when all that is really wanted is               
 that public meetings, where there is going to be some action taken,           
 be held in public.  He cautioned that with the way the legislation            
 was going, it may be doing more damage than good.                             
 SENATOR LITTLE commented that she believes that the existing law              
 has already broken down, and she strongly feels that there needs to           
 be something put in place to take its place.                                  
 Number 350                                                                    
 SENATOR HALFORD asked how the members would feel about an amendment           
 to exempt the Open Meetings Act from the general severability of              
 Alaska Statutes.  He said that means it either works or it doesn't,           
 and it can't be picked apart by court action.  If a court is going            
 to decide that the Open Meetings Act is wrong in any way, it is all           
 or nothing.  He is concerned that the Legislature is tinkering in             
 response to the court's tinkering, yet the Legislature has no idea            
 of what the court's interpretation of the final product is going to           
 be.  SENATOR TAYLOR stated he didn't think he would have a great              
 deal of objection to that approach, but he was not certain it could           
 done.  SENATOR DONLEY thought the community council was alright,              
 but he does not want to go that far with advisory committees.  His            
 problem is with getting to the point where non officials are not              
 allowed to talk about something among themselves in their                     
 Number 400                                                                    
 SENATOR HALFORD said he thought the two categories are:  what kind            
 of notice do you provide; and what kind of restrictions on                    
 communication do you have.  The notice provisions on meetings                 
 should apply to virtually everybody and any thing that has got to             
 do with government.  The restrictions on communication should not             
 apply to people that don't stand for election, don't get any                  
 compensation, and don't have significant power.                               
 In response to Senator Halford, TAM COOK suggested keeping the two            
 tiers for the definition of "meeting" as contained in the committee           
 substitute, but apply the first tier only to groups that are not              
 advisory in nature; keep the second test for citizen groups whereby           
 they have to notice their meeting only if they take action; and set           
 up a third tier for advisory groups that is somewhat in the middle            
 that requires them to notice a meeting at any time that they take             
 action, but also pick up the notion of a prearranged meeting as               
 being separate from a casual encounter, so that the notice                    
 requirement for all their meetings applies to prearranged meetings            
 and gatherings at which action is taken.  She said if the committee           
 wants to make these kind of fine distinctions, she was sure she               
 could draft it.                                                               
 Number 465                                                                    
 After further discussion, SENATOR LITTLE moved a conceptual                   
 amendment to create a three-tierd system as proposed by Tam Cook.             
 SENATOR TAYLOR objected for discussion purposes, stating he would             
 rather have less tiers than more tiers.  He suggested taking out              
 the recommendation language (beginning on line 9, after the second            
 "or") altogether.  SENATOR HALFORD agreed that it was simpler to              
 take out the advisory questions, and if that can't be done, then go           
 to a tier concept.                                                            
 TAME COOK said if the desire is to remove from application of the             
 Open Meetings Act all advisory groups, including subcommittees, she           
 thought it would be necessary in the definition to affirmatively              
 say so.  But she cautioned that by leaving the language "with                 
 authority to establish policies or make decisions" and being silent           
 about how that is to be applied to an advisory group, then the                
 court will decide that as to an advisory group, their decision is             
 the advice they are going to make and they may inadvertently scoop            
 these groups back into the statute.  The result is that it confines           
 the application of the open meetings statute only to groups that              
 have the ability to make some sort of binding decision in                     
 government.  It removes from application of the open meetings                 
 statute a great many groups that are undoubtedly now included, she            
 Number 540                                                                    
 SENATOR TAYLOR called for a roll call vote on Senator Little's                
 conceptual amendment.  Senators Little and Donley voted "Yea" and             
 Senators Taylor, Halford and Jacko voted "Nay."  The conceptual               
 amendment failed.                                                             
 Number 550                                                                    
 SENATOR TAYLOR moved that on page 5, beginning on line 9, after the           
 word "entity" delete the language "or to make recommendations                 
 directly to a mayor or manager of a municipality, a superintendent            
 of a school district, or another governmental body authorized to              
 take action on the matter that is the subject of the                          
 recommendations;".  On line 12 following "governmental body"                  
 rewrite the rest of the sentence so that it specifically deletes              
 subcommittees or those who would make recommendations.  He further            
 moved to delete the language on page 5, beginning on line 18 after            
 the word "collectively" down through line 23 ending with the word             
 "entity."  SENATOR LITTLE objected.  The roll was taken with the              
 following result:  Senators Taylor, Halford, Jacko voted "Yea" and            
 Senators Donley and Little voted "Nay."  The Chairman stated the              
 amendment was adopted.                                                        
 Number 575                                                                    
 SENATOR TAYLOR noted a former legislator had forwarded                        
 recommendations to the committee concerning the application of the            
 law to the Legislature.  In his recommendations he suggests that              
 the word "formal" before the word "gathering" under the definition            
 of "meeting," the concept being that there needs to be some                   
 triggering mechanism where it moves from the discussion phase to              
 the decisional phase.  However, Senator Taylor thought some other             
 word was needed.                                                              
 TAPE 94-26, SIDE A                                                            
 Number 012                                                                    
 SENATOR LITTLE stated she would prefer that language such as a                
 formal gathering not be added, because she doesn't think it                   
 accomplishes anything.  She said she didn't understand the concern            
 that someone is trying to address by adding it.                               
 Number 030                                                                    
 SENATOR DONLEY asked how this would work with caucuses.  SENATOR              
 LITTLE responded that the Ethics Committee has been charged with              
 applying the Open Meetings Act to the Legislature, so it would be             
 up to that committee as to how this law is applied to the                     
 legislative branch.  SENATOR TAYLOR said by turning this whole                
 process lose with a group of people that have never been the                  
 majority with a group of people who have never served in the                  
 Legislature or understand how it works, he didn't think it would              
 end up with anything that would be workable.  Further, he thinks              
 most of the assemblies and councils are having a very difficult               
 time trying to comply right now with the Act, and providing that              
 three members can at least talk with one another gives them a                 
 little bit of relief.  But when dealing with 60 members of the                
 Legislature, these numbers don't work anymore.  SENATOR LITTLE                
 responded that is why it makes sense to work hard with the Ethics             
 Committee in coming up with something that will serve everyone                
 Number 060                                                                    
 SENATOR TAYLOR stated he didn't feel it was appropriate to move the           
 bill from committee until such time as the committee has given some           
 rather strong direction to the Ethics Committee on how it believes            
 it should apply.                                                              
 Number 070                                                                    
 JOHN MCKAY, testifying from Anchorage, reminded the committee that            
 the statute that gives the Ethics Committee the opportunity to set            
 some standards for the Legislature specifically creates a couple of           
 things that look at the special nature of the Legislature.  It                
 provides that whatever guidelines that they come up with have to              
 allow closed caucuses and private informal meetings or                        
 conversations between legislators when a political strategy is                
 Mr. McKay said that all of the people who have been involved in               
 this process, from the municipal league people, the school board              
 people, the press organizations, to the League of Voters have all             
 said that the legislation in front of the committee works to                  
 balance the interests of the municipal officials, public officials            
 and the public.                                                               
 Number 120                                                                    
 SENATOR TAYLOR thanked Mr. McKay for his comments.  He stated the             
 bill was not ready to be moved out of committee and he hoped it               
 would be in the near future.                                                  
 There being no further business to come before the committee, the             
 meeting was adjourned at 4:10 p.m.                                            

Document Name Date/Time Subjects